The most significant change in the EEOC’s new Guidance is that it places a higher burden on employers to prove that use of arrest or conviction records is “job related and consistent with business necessity.” As a result, employers should conduct an individualized inquiry into the circumstances surrounding each applicant’s arrest or conviction record, and then consider whether not hiring the individual based on that record is consistent with business necessity.

I continue to counsel employers to focus on conviction, not arrest, records, because it is much easier to defend decisions made on that basis.

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